Citation Nr: 1515340
Decision Date: 04/09/15 Archive Date: 04/21/15
DOCKET NO. 13-20 114 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to an effective date earlier than November 26, 2004, for the grant of service connection for coronary artery disease, status post coronary artery bypass graft.
2. Entitlement to an initial disability rating greater than 10 percent for service-connected coronary artery disease, status post coronary artery bypass graft, from November 26, 2004 to August 6, 2007; greater than 30 percent from August 7, 2007, to December 28, 2010; and greater than 60 percent from December 29, 2010.
3. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Alabama Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
D. Orfanoudis, Counsel
INTRODUCTION
The Veteran had active service from December 1968 to October 1970.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Muskogee, Oklahoma, that granted service connection for coronary artery disease and assigned an initial 10 percent disability rating, effective November 26, 2004; a 30 percent disability rating, effective August 7, 2007; and a 60 percent disability rating, effective December 29, 2010. The Veteran expressed disagreement with the assigned disability ratings and the effective date of service connection and perfected a substantive appeal.
In October 2014, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the above hearing, the undersigned clarified the issues on appeal and inquired as to the etiology, continuity, and severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. Neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under 38 C.F.R.
§ 3.103(c)(2).
A TDIU claim is part of an increased disability rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). When evidence of unemployability is submitted at the same time that a Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. As the issue of unemployability has been raised by the record, the issue of entitlement to a TDIU is before the Board are as set forth above.
The issues of entitlement to an increased disability rating for the service-connected coronary artery disease and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction.
FINDINGS OF FACT
1. The Veteran's November 2000 claim for non-service-connected pension benefits did not contain a claim of service connection for coronary artery disease.
2. On November 26, 2004, the Veteran's claim of service connection for diabetes mellitus was received.
3. By rating action dated in September 2011, the RO granted service connection for coronary artery disease status post coronary artery bypass graft on the basis of the presumption of the development of ischemic heart disease due to herbicide exposure.
CONCLUSION OF LAW
An effective date prior to November 26, 2004, for the award of service connection for coronary artery disease, status post coronary artery bypass graft, is not warranted. 38 U.S.C.A. §§ 1116, 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400, 3.816 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA's Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).
The appeal for an earlier effective date for the grant of service connection arises from the Veteran's disagreement with the effective date assigned after the grant of service connection. Where an underlying claim for service connection has been granted, and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).
The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case.
Regarding, VA's duty to assist, the Board observes that in a claim challenging the effective date of an award, the critical evidence is generally what was in the record when the award was made (and when it was received). Generally, development of the evidentiary record is not indicated unless pertinent evidence constructively of, but not associated with, the record is identified. The Veteran has not identified any evidence pertinent to the instant appeal that is outstanding.
Earlier Effective Date
Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.
A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identify the benefit being sought. 38 C.F.R. § 3.155(a).
See Brannon v. West, 12 Vet. App. 32, 34 (1998).
If the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R.
§ 3.114(a)(1). If a claim is reviewed at the claimant's request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the Veteran met all the criteria of the liberalizing law or issue at that time. 38 C.F.R. § 3.114(a)(3).
In cases involving presumptive service connection due to herbicide exposure, such as is the case here, there is an exception to the provisions set forth above. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service
connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). A Nehmer class member is identified as a Vietnam Veteran who has a covered herbicide-related disease. 38 C.F.R. § 3.816(b)(1)(i). The term "covered herbicide diseases" includes coronary artery disease. 38 C.F.R. § 3.816(b)(2)(i). The regulation applies to claims for disability compensation that were either pending before VA on May 3, 1989, or were received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. 38 C.F.R. § 3.816(c).
The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation from a covered herbicide disease. The regulation applies to a claim for compensation where either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989; or (2) the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date entitlement arose. 38 C.F.R.
§ 3.816(c)(1), (c)(2) . If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R.
§ 3.114 or § 3.400. See 38 C.F.R. § 3.816(c)(4).
Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; however, if the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
In November 2000, the Veteran submitted a claim for non-service-connected pension benefits. However, the Veteran did not suggest that he his claim was based on coronary artery disease. Later in November 2000, the Veteran was awarded non-service-connected pension benefits based on spine and shoulder disabilities.
On November 26, 2004, the Veteran's claim of service connection for diabetes mellitus was received. Medical treatment records received in conjunction with this claim demonstrate that the Veteran was diagnosed with coronary artery disease as early as 2001.
By rating action dated in September 2011, the RO granted service connection for coronary artery disease status post coronary artery bypass graft on the basis of the presumption of the development of ischemic heart disease due to herbicide exposure. In granting service connection, the RO assigned an initial 10 percent disability rating, effective November 26, 2004; a 30 percent disability rating, effective August 7, 2007; and a 60 percent disability rating, effective December 29, 2010. The Veteran has expressed disagreement with the effective date of service connection. During his October 2014 hearing, he argued that the effective date of service connection should be the date that his coronary artery disease was discovered in 2001.
Initially, the Board finds that there is no evidence that a claim seeking service
connection for coronary artery disease (or for diabetes mellitus) was filed prior to November 26, 2004.
Diabetes mellitus was added to the list of diseases subject to service connection on a presumptive basis, effective July 9, 2001. See 66 Fed. Reg. 23,166 (May 8, 2001). The United States Court of Appeals for the Federal Circuit (Federal Circuit) later held that the effective date of the regulation should be May 8, 2001, pursuant to 38 U.S.C.A. § 1116(c)(2). See Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368, 1378 (Fed. Cir. 2002).
Regarding coronary artery disease, effective August 31, 2010, ischemic heart disease was added to the list of disorders for which service connection may be granted on a presumptive basis for Veterans exposed to Agent Orange during service. Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.
See 38 C.F.R. § 3.309(e) Note 3.
Service connection for coronary artery disease has been established on a presumptive basis and not as secondary to the Veteran's service connected diabetes mellitus. In assigning the current effective date, the RO determined that evidence of record in support of the claim for service connection for diabetes mellitus, filed on November 26, 2004, constituted an informal claim of service connection for coronary artery disease.
Therefore, the effective date for coronary artery disease in this case is earlier than would be permitted under the effective date of the liberalizing legislation. However, in this instance, as the Veteran's informal claim for compensation for coronary artery disease was received by VA between May 3, 1989, and August 31, 2010 (the effective date of the liberalizing legislation which added coronary artery disease to the list of disorders for which service connection may be granted on a presumptive basis for Veterans exposed to Agent Orange during service), the effective date of the award will be the later of the date such claim was received by VA or the date entitlement arose. See 38 C.F.R. § 3.816(c)(1), (c)(2). As the date the Veteran's claim was received on November 26, 2004, is later than the date entitlement arose (2001), the effective date of service connection must be November 26, 2004. This is the effective date which has been assigned, and an earlier effective date is not warranted. Id.
There is nothing in the record to suggest that the Veteran communicated an intent to claim service connection for coronary artery disease prior to November 26, 2004. Neither the Veteran nor his representative has alleged that he submitted an earlier application for service connection for coronary artery disease.
There is no provision in the law for awarding an earlier effective date. The mere existence of a disability does not constitute a claim of service connection for such disability. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352 (1995).
Accordingly, the Board finds that the earliest possible effective date for the award of service connection for coronary artery disease status post coronary artery bypass graft is November 26, 2004, and that the claim for an earlier effective date prior to that date must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).
ORDER
An effective date earlier than November 26, 2004, for the grant of service connection for coronary artery disease, status post coronary artery bypass graft, is denied.
REMAND
During the January 2015 hearing, the Veteran indicated that he had been receiving ongoing treatment from his private medical care providers, to include a Dr. McBride and Heart South, for increased symptoms associated with his service-connected coronary artery disease status post coronary artery bypass graft. Specifically, he indicated that he was experiencing increased dizziness and fatigue. A review of the Veteran's claims file reveals that the identified treatment records have not been obtained. As such, on remand, an effort must be undertaken to obtain the identified private treatment records.
Additionally, in light of the Veteran's contentions of increased symptomatology and a review of the medical evidence of record, the Board finds that a contemporaneous examination of his service-connected coronary artery disease should be conducted. When a claimant alleges that a service-connected disability has worsened since the last examination (here in June 2012), a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating).
As to the issue of entitlement to a TDIU, the coronary artery disease rating claim is inextricably intertwined with the Veteran's claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The issue of an increased disability rating for the service-connected coronary artery disease must be addressed by the agency of original jurisdiction before the Board renders a decision on the TDIU claim.
Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disorders should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).
Accordingly, the case is REMANDED for the following action:
1. With any necessary assistance from the Veteran, obtain all outstanding private treatment records, including records from Dr. McBride and Heart South (see Board Hearing Transcript at 5), and any other non-VA providers identified.
2. Obtain all VA outpatient records dated since August 2011. In this regard, the May 2013 statement of the case (SOC) indicates that an "electronic review of additional outpatient treatment records, VA Medical Center Birmingham, dated August 25, 2011, through April 25, 2013, was conducted." This will not suffice. These records must be associated with the record.
3. Then afford the Veteran a VA examination to determine the precise nature and severity of his service-connected coronary artery disease status post coronary artery bypass graft. The entire claims file, to include a complete copy of this REMAND must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to particularly include metabolic equivalents (METs) and ejection fraction measurements, as well as, symptoms experienced upon diagnostic testing) must be accomplished (with all results made available to the examiner prior to the completion of the report), and all clinical findings shall be reported in detail.
With respect to METs testing, if a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used.
The examiner must also clearly indicate whether it is possible to distinguish the symptoms and effects of the Veteran's service-connected coronary artery disease (ischemic heart disease) on METs testing, from those attributable to any other cardiac disability(ies).
In this regard, the examiner should also clearly identify all heart disorder(s) and symptoms present at any point since November 2004.
Then, with respect to each such diagnosed disorder or symptom, the examiner should provide an opinion, consistent with sound medical judgment, as to whether the disorder or symptom has any relationship to the service-connected coronary artery disease (ischemic heart disease). If the examiner determines that any symptom or disorder is not related to the Veteran's coronary artery disease (ischemic heart disease), the examiner must explain why it is not related.
The examiner should clearly identify all cardiac symptoms/effects for which it is not medically possible to distinguish as resulting from service-connected and non-service-connected cardiac disability(ies).
The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any examination results.
The examiner shall further describe how the symptoms of his service-connected coronary artery disease affect his occupational functioning. A complete rationale for all opinions expressed shall be provided.
3. Then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental SOC. An appropriate period of time should be allowed for response.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action.
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs